116 Ala. 390 | Ala. | 1896
The wall involved in this case having been erected on the line between the lots of McMinn and Parker, with one-half of it resting upon the ' land of each, and at the joint expense of the coterminous proprietors, was as much the property of Parker as of McMinn, and is now- as much the property of respondent, who has succeeded to Parker’s rights and title, as it is of the complainant, McMinn. Its sole value to Parker and to liis successors in estate lay in his and their right to join any building he or they might thereafter 'erect on the adjacent lot on to it and to use it as the wall of such building on that side, as McMinn has used it as the wall on that side of the building erected by him. The owners of the vacant lot had, in other words, not only the privilege or easement of joining on to the wall, but they were in fact owners of the wall in common with McMinn, and as such had the right to use the wall to its middle line in any manner they pleased.so long as the wall was not thereby injured or weakened in respect of its uses as a part of McMinn’s building. Their respective rights standing thus upon the law without anj^ agreement, are but accentuated and emphasized by the writing entered into by McMinn and Parker, reciting the building of the wall as a party wall at joint cost, on the line between, and extending each way onto,the land of each of the coterminous proprietors,'and stipulating .“that the said wall shall be kept in repair by the said parties equally, that each of said parties have a right to use the same and join thereto, that nothing shall be done by either party to weaken or in any manner impair the strength of said wall as a party wall, and that said wall shall be and remain a solid wall.” Under the law, apart from the contract, and under the contract itself, Parker had the right not only to use the face or side of the wall next his lot, but also to such further use of it as was necessary to form a complete and perfect junction in an ordinarily good mechanical manner bewteen
In arriving at the conclusion just announced we have considered the affidavits found in the record without passing upon the question whether this is a proper case for such evidence. This we have done because both parties filed affidavits below; all the affidavits were considered by the chancellor. The objection by appellee to appellant’s affidavits are not and could not be presented for consideration on this appeal, and appellant’s objections to appellee’s affidavits are not insisted upon by counsel here.
The court is, however, of the opinion that the chancellor erred in allowing the amendment of the verification of respondent’s answer after the submission of the cause against complainant’s objection ; and for this the decree dissolving the injunction must be reversed. The cause is remanded.— Wilkinson v. Buster, 115 Ala. 578.
Reversed and remanded.